Opinion
2014BX020711
02-04-2015
The People of the State of New York v. Patricia Tejeda, Defendant.
Robert T. Johnson District Attorney Bronx County 215 East 161st Street Bronx, New York 10451 By: Ray Serina, Esq. Defendant's Attorney Brendan M. Ahern, Esq. 666 Old Country Road Suite 700 Garden City, NY 11530
Robert T. Johnson
District Attorney
Bronx County
215 East 161st Street
Bronx, New York 10451
By: Ray Serina, Esq.
Defendant's Attorney
Brendan M. Ahern, Esq.
666 Old Country Road
Suite 700
Garden City, NY 11530
Steven J. Hornstein, J.
At approximately 9:45 p.m. on April 17, 2014, Police Officer Jeymi Montas observed the defendant drive a 2013 Volkswagen sedan onto a public sidewalk located at the southwest corner of Riverdale Avenue and West 231st Street. Upon approaching the driver, forty-eight
year old Patricia Tejeda (hereinafter "the defendant"), Officer Montas observed that her eyes were bloodshot and watery, her speech was slurred and her breath bore the strong odor of alcohol. The officer also observed two cups containing an unspecified liquid in the vehicle's center console and an empty wine bottle on the floor of the front passenger side. At 9:56 p.m., the defendant was arrested. Subsequent to the arrest, Officer Montas recovered two bottle openers from the defendant's purse and the defendant stated to the officer, in sum and substance, "I can't hold it. I have to go to the bathroom. I have to pee."
The defendant was taken to the 45th Precinct for a chemical breath test. At some unspecified time a breath test was administered to the defendant on the Intoxilyzer 5000EN by Highway One Police Officer Harris. The test revealed a blood alcohol level of .26 — more than three times the legal limit.
On April 18, 2014, the defendant was arraigned on a misdemeanor complaint charging her with four counts of operating a motor vehicle while under the influence of alcohol (VTL §§ 1192 [2-a] [a]; 1192 [3]; 1192 [2]; 1192 [1]); one count of reckless driving (VTL § 1212); and one count of driving on a sidewalk (VTL § 1225 [a]). The defendant's license to drive was suspended; she was released on her own recognizance and the matter was adjourned for private counsel.
On April 24, 2014, retained counsel served an eight page discovery request. In language closely paralleling CPL § 240.20 (1) (k), the defendant sought:
Any written report or document, or portion thereof, concerning a physical or mental examination or scientific test or experiment, relating to the criminal action or proceeding, including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and certification certificate, if any, held by the operator of the machine or instrument...including but not limited to any laboratory analysis or test or calibration report, including but not limited to such tests an or reports done [on] any other breath or blood testing equipment used by the police in this case. This requests includes but is not limited to any print outs or reports concerning any such calibration any such calibration, inspection or test. See defendant's demand at 5.
On May 21, 2014, the People responded to the defendant's discovery demands. The response specifically referenced CPL § 240.20 (1) (k) and stated: The People are in possession of an IDTU tape and other DWI paperwork, which have been provided to defendant." See People's discovery response at 2.
On June 16, 2014, the defendant filed an omnibus motion that asserted, in pertinent part, that the People had failed to comply with her demands for discovery pursuant to CPL § 240.20 (1) (k). The defendant requested a directive from the Court requiring compliance by a date certain and sought preclusion if the People failed to comply. See defendant's omnibus motion at 5-6.
On June 24, 2014, the People filed a response to the defendant's omnibus motion and stated, inter alia:
The People oppose defendant's demand for a response to defendant's Request for a Bill of Particulars and a demand for discovery. The People filed and served a response to defendant's request on May 21, 2014. As such defendant's motion is moot, and should be denied. The People also served discovery on April 28, 2014 and May 21, 2014. As such, defendant's motion is moot and should be denied.
On August 1, 2014, the Court rendered a written decision. With respect to the defendant's motion to compel discovery, the Court did not, as requested, set a specific date for production of the requested discovery. Instead, the Court wrote, in pertinent part:
The People assert that they filed a response to the defendant's demand to produce and bill of particulars on May 21, 2014. See People's Response at 6-7. To the extent the People have not previously done so, the People are directed to provide pre- trial disclosure of all materials subject to CPL § 240.20 and CPL § 200.95.
On September 25, 2014 the parties appeared in Part VCQ for hearing and trial. In a supplemental motion filed by the defendant on November 4, 2014, the defendant described the court proceedings as follows:
a. The Defendant made an oral application to preclude the results of a breath test administered to the Defendant, based upon the persistent failure of the People to produce any records pertaining to the calibration and maintenance of the Intoxilyzer 5000EN and simulator solutions employed in the testing of the Defendant, pursuant to CPL § 240.20 (1) (k).
b. In response, the People produced partial records...but failed to comply with the Demand for Discovery.
c. At the request of Judge McGuire, the Defendant outlined the remaining materials that were required to be disclosed, including:
i. The complete calibration, inspection, repair and maintenance records kept for the Intoxilyzer 5000 EN machine used in this case, including the fieldd. The People agreed to disclose the records outlined above on or before October 1, 2014.
inspection test checks of the Intoxilyzer 5000EN machine made by an NYPD technician, and calibration tests checks, which are done every six
months, including the printouts that display the quantified calibration check results; ii. Full calibration test documents, including printouts,
for the calibration tests done immediately prior to and immediately after the Defendant's test; iii. The Maintenance Log for the Intoxilyzer machine
used in this case; iv. Printouts from the simulated tests include the breath tube test; insufficient sample test; radio frequency test; reset test;
v. The headspace gas chromatography ("GC") data records that are produced and stored in relation to the simulator solution(s) employed in the calibration of the machine and testing of the Defendant.
e. Judge McGuire indicated that if the records were not disclosed on or before October 1, 2014, he would entertain preclusion of the breath reading.
On September 30, 2014, the People filed a supplemental response in which they claimed all the "statutorily required documents regarding the Intoxilyzer 5000EN that are relevant and material to the device's condition in the instant matter" had been disclosed on September 25, 2014. See People's Supplemental Response at 1-2. The People further claimed: (1) any other requested documents were not statutorily discoverable; (2) the defendant's discovery requests constituted a "fishing expedition for impeaching material"; (3) the People would be "unduly burdened in future DWI cases if the defendant's discovery requests [were] granted"; and (4) "appellate courts...have held that...trial courts acted in excess of their unauthorized power [when they] compel discovery not provided by CPL Article 240." Id. at 2-8.
On November 4, 2014, the defendant filed a reply affirmation seeking: (1) an order to compel the People to provide, pursuant to CPL §240.20 (1) (k), the materials requested; and (2) preclusion of the breath test results upon non-compliance. See defendant's reply affirmation at 3-4. LEGAL ANALYSIS
Discovery in criminal cases in New York State is governed by statute. See People v. Colavito, 87 NY2d 423, 427 (1996) ("Items not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specially mandated"); see also Matter of Johnson v. Sackett, 109 AD3d 427, 429 (1st Dept 2013), lv denied 22 NY3d 857 (2013) (neither a defendant nor a court has the "authority to compel pretrial discovery in criminal cases that is unavailable pursuant to statute.").
New York does, however, have "a philosophy of broad pretrial disclosure." People v.
De Gata, 86 NY2d 40, 45 (1995); see also People v. Copicotto, 50 NY2d 222, 226 (1980) (CPL Article 240 "evinces a legislative determination that the trial of a criminal charge should not be a sporting event where each side remains ignorant of facts in the hands of the adversary until events unfold at trial"); Peter Gerstenzang & Eric H. Sills, Handling the DWI Case in New York, §§ 20:1 at 568, 20:2 at 568-569 (2012-2013 ed.).
"Discovery of documents pertaining to a chemical test in a DWI case is governed by statute, case law, and the Constitution. CPL § 240.20 (1) (k) is the primary statutory authority governing disclosure in Vehicle and Traffic Law cases." Id. § 20:40. This section provides:
In any prosecution commenced in a manner set forth in this subdivision alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to this article, or any other provision of law, or the constitution of this state or of the United States, any written report or document, or portion thereof, concerning a physical examination, a scientific test or experiment, including the most recent record or inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests or experiments and the certification certificate, if any, held by the operator of the machine or instrument, which tests or examination were made by or at the request or direction of a public servant engaged in law enforcement activity or which was made by a person whom the prosecutor intends to call as a witness at trial, or which the people intend to introduce at trial.
Prior to the enactment of CPL § 240.20 (1) (k), courts were unclear whether calibration, inspection and repair records of breath devices were discoverable under the broad terms of CPL § 240.20 (1) (c) which, while referring to written reports or documents concerning scientific tests, did not specifically refer to scientific tests conducted in cases involving Vehicle and Traffic Lawoffenses. See Preiser, Supp Practice Comm to CPL 240.20 (1) (k) (McKinney ed., 1990, Cumulative supp at 141). Paragraph (k) was enacted to resolve the question as to whether inspection, calibration and repair records of chemical breath testing machines were discoverable. Id.
Notwithstanding the enactment of paragraph (k), however, issues remain as to the scope of the prosecution's discovery obligations under this provision. Indeed, recent court decisions interpreting CPL § 240.20 (1) (k) have reached inconsistent decisions as to what must be disclosed. In People v. White, 45 Misc 3d 694, 694 (Crim Ct, NY County, 2014), the defendant, like the instant defendant, took a chemical breath test on an Intoxilyzer 5000EN and registered a reading in excess of the legal limit. The People, having provided the defendant with the field unit inspection documents for both before and after the defendant's tests and the calibration check prior to the defendant's breath test contended that the they had met their discovery obligations. The defendant, seeking disclosure of items similar to those demanded here, filed a motion to compel. The Court held that the People were required "to produce the most recent calibration report predating defendant's arrest and up to 30 days thereafter." Id. at 700. The Court further held that the People, absent the presence of Brady material, were not required to produce the most recent maintenance records or the gas headspace chromatography reports. Id. at 700 - 710.
In People v. Ramrup, 45 Misc 3d 1227 (A) (Sup Ct, Bronx County 2014), the Court found the People's disclosure obligations were far more expansive than those stated in White. In Ramrup, the defendant, represented by the same firm as the defendant in the instant matter, sought "all records ...relating to the maintenance, calibration, inspection, check an other tests performed on the Intoxilyzer 5000EN that was utilized (one year prior to and six months following defendant's arrest); the certification certificate of the Intoxilyzer 5000EN operator; all documents relating to the preparation and testing of the simulator solution; the forensic method utilized in the production of the simulator solution; the standard operating procedures for the production of all simulator solutions utilized in defendant's testing; and the actual chromatograms for the headspace gas chromatography." Id. The Court, noting that the case against the defendant relied heavily on the results of the Intoxilyzer 5000EN, ruled that the defendant was "entitled to the documents which he seeks" and found that the "demand was neither overbroad nor extensively burdensome." Id.
As in all driving while under the influence of alcohol cases in which the defendant takes a breath test, the accuracy and reliability of the breath tests results is of critical importance to both the prosecution and the defense. Here, the defendant is accused of driving while under the influence under four provisions of the Vehicle and Traffic Law. Two of these provisions, VTL § 1192 (2-a) (a) and VTL § 1192 (2), require the People to prove that the defendant was operating a motor vehicle with a blood alcohol level above a specific statutory threshold. See CJI2d (NY) (Vehicle & Traffic Law §§ 1192 [2-a] [a] and [2]). The other two provisions, VTL § 1192 (3) and VTL § 1192 (1), though they do not contain a specific alcohol level as an element of the offense, allow a trier of fact to consider the defendant's blood alcohol level in assessing whether intoxication or impairment has been proven. See CJI2d (NY) (Vehicle & Traffic Law §§ 1192 [3] and [1]).
Though "the scientific reliability of breathalyzers in general is no longer open to question" (People v. Mertz, 68 NY2d 136, 148 [1996]), and though the Intoxilyzer 5000, in particular, has
been found to meet the standards developed by the National Bureau of Standards for the National Highway Traffic Safety Administration for breath testing devices (see People v. Gallagher, 132 Misc 2d 195 (Dist Ct, Suffolk County 1986), a proper foundation must still be laid before the results of a chemical breath test will be admitted at trial. See People v. Freeland, 68 NY2d 699, 700 (1986); People v. English, 103 AD2d 979, 981 (3d Dept 1984); see also VTL § 1194 (4) (c); 10 NYCRR 59.4 (a). Generally, this foundational requirement is met by the introduction of certified calibration reports, field tests, simulator solution records and the operator's certification as business records under CPLR 4518 (c). Admission of these documents allows the People
to assert that the device used was properly calibrated and was in good working order (People v. Boscic, 15 NY3d 494, 500 [2010]); People v. Todd, 38 NY2d 755, 756 [1975]); that the chemicals used in conducting the test were of the proper kind and mixed in the proper proportions; (People v. Freeland, 68 NY2d at 700), and that the test was properly administered (People v. Murphy , 101 AD3d 1177, 1178 [3d Dept 2012]; People v. White, 45 Misc 3d 694 at 695-696). See generally Gerstenzang & Sills, Handling the DWI Case in New York, § 42:3 at 1060 (2012 - 2013 ed.).
The admission of breath test results, however, does not foreclose the defense from challenging the test results "on the grounds that proper operating procedures were not followed or that the particular machine was not operating properly." People v. Robinson, 53 AD3d 63, 70 (2d Dept 2008). To mount such a challenge, the defendant must be "accord[ed] [a] full opportunity, through pretrial discovery and other means, to test and challenge the probative worth of the [breathalyzer] evidence." People v. Gower, 42 NY2d 117, 121 (1977); see also People v. Alvarez, 70 NY2d 375, 380 (1987) (a "defendant may not be denied discovery which prevents him [or her] from challenging the reliability and accuracy of the machine."); People v. Erickson, 156 AD2d 760, 762 (3d Dept 1989) ("It is beyond dispute that foundation evidence produced by the People relating to the reliability of [a breath testing device] is crucial to a defense attack alleging that the proper operating techniques were not followed in a certain instance or that a particular machine was malfunctioning."). Accordingly, upon proper demand, a defendant charged with driving with a blood alcohol level above the legal limit has the right to disclosure of documents not expressly listed in CPL § 240.20. See People v.Robinson, 53 AD3d at 67; see also Matter of Constantine v. Leto, 157 AD2d 376, 378 (3d Dept 1990) (calibration tests, police rules and regulations, operational checklists and records indicating a breath device was not functioning properly are discoverable).
Here, the defendant argues that pursuant to CPL § 240.20 (1) (k) she is entitled to: "[t]he
complete calibration, inspection, repair and maintenance records kept for the Intoxilyzer 5000EN machine used in this case..."; (2) the "[f]ull calibration test documents, including printouts, for the calibration tests done immediately prior to and immediately after the Defendant's test"; (3) "[t]he maintenance log for the Intoxilyzer machine used in this case"; (4) "[p]rintouts from the simulated tests..."; and (5) [t]he headspace gas chromatography ("GC") data records..." See defendant's reply affirmation at 3-4.
The People oppose the defendant's demands and note that the defendant seeks, without limitation, the calibration, inspection, repair and maintenance records of the Intoxilyzer 5000EN utilized in this case. See People's Supplemental Response at 4-5. The People contend that "the Intoxilyzer's...complete maintenance record is hardly relevant to the present functionality of the device"; "[g]ranting a massive extension of discoverable material...would unduly burden the People not only in this case, but in thousands of DWI cases that continue to occur on a regular basis." Id. The People also warn that courts do not possess the "authority to compel pretrial discovery in criminal cases that is unavailable pursuant to statute [and] upon issuing [such] an extrajudicial directive, may be subject to an Article 78 proceeding." Id.; see e.g. Matter of Johnson v. Sackett, 109 AD3d at 429.
Both CPL § 240.20 (1) (c) and (k) provide, in pertinent part, that: "Except to the extent protected by court order, upon a demand to produce by a defendant against whom...a misdemeanor is pending, the prosecutor shall disclose: Any written report or document, or portion thereof, concerning...a scientific test, relating to the criminal action...which was made by a person...engaged in law enforcement activity...or which the people intend to introduce at trial."
"The governing rule of statutory construction is that courts are obliged to interpret a statute to effectuate the intent of the legislature, and when the statutory language is clear and unambiguous, it should be construed so as to give effect to the plain meaning of [the] words used." People v. Barden, 117 AD3d 216, 224-225, lv granted 24 NY3d (2014), quoting People v. Finnegan, 85 NY2d 53, 58 (1995), cert denied 516 US 919 (1995). The portion of the statutory language cited above is "clear and unambiguous." In the absence of a protective order, the People must, upon proper demand, provide all written reports or documents concerning a scientific test which relate to the criminal action. Here, a scientific test, a chemical breath test, was conducted on an Intoxilyzer 5000EN. Thus, to the extent not previously disclosed, the People must provide, without limitation, every "written report or document, or portion thereof" concerning the chemical breath test administered to the defendant on April 17, 2014. These documents, include, but are not limited to, printouts and operational checklists, if any, used in connection with the defendant's breath test.
Though portions of paragraph (c) and paragraph (k) of CPL § 240.20 (1) closely track one another, the latter paragraph contains statutory language which pertains exclusively to vehicle and traffic law offenses. CPL § 240.20 (1) (k) provides, in pertinent part, "in any prosecution... alleging a violation of the vehicle and traffic law, in addition to any material required to be disclosed pursuant to [CPL § 240.20]...any written report or document, or portion thereof, concerning a...scientific test..., including the most recent record of inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests...and the certification certificate, if any, held by the operator of the machine or instruments...."
The statutory language of CPL 240.20 (1) (k) is, in at least one respect, clear and unambiguous. The People must provide the certification certificate, if any, held by the officer who administered the breath test. Accordingly, if the People have not previously done so, the People are directed to provide the defendant with the certification certificate of the officer who administered the breath test to the defendant.
Less clear is paragraph (k)'s directive to disclose "any written report or document, or portion thereof, concerning a...scientific test...including the most recent record or inspection, or calibration or repair of machines or instruments utilized to perform such scientific tests..." Although this statutory language clearly indicates that inspection, calibration and repair records for breath testing devices fall within the broader category of written reports or documents "concerning a scientific test"; the use of the phrase "the most recent record," followed by the disjunctive reference to three distinct types of records — inspection, calibration and repair — raises questions as to what must be disclosed under the statute.
As stated by the Court of Appeals, "[i]n the interpretation of a statute the legislative intent is the great and controlling principle." People v. Manini, 79 NY2d 561, 570 (1992). Where "two constructions of a criminal statute are plausible, the one more favorable to the defendant should be adopted in accordance with the rule of lenity." People v. Green, 68 NY2d 151, 153 (1986); People v. Golb, 23 NY3d 455 (2013).
The defendant contends that the People are required to disclose, without limitation, the complete calibration, inspection, repair and maintenance records kept for the Intoxilyzer 5000EN device used to test her blood alcohol content. Contrary to the defendant's contention, the People are not required to comply with this demand. CPL § 240.20 (1) (k) contains the phrase "the most recent record of inspection, or calibration or repair." The inclusion of this phrase clearly demonstrates that the legislature intended to impose relevant time limitations on the records to be disclosed.
The defendant also seeks the "full" calibration test documents for the calibration tests conducted immediately prior to and immediately after the defendant's test and maintenance logs for the Intoxilyzer machine used to test the defendant. See defendant's Reply Affirmation. The People point out that "[t]he relevant portion of CPL § 240.20 (1) (k) is partially disjunctive ...[and] [t]he prosecution must disclose written reports including either the most recent record of inspection, or calibration or repair of machines utilized to perform such tests." See People's Supplemental Response at 3. The interpretation the People propose would, subject to their Brady obligations, require disclosure of only one report — the inspection, calibration or repair report that was closest in time to the administration of the test. This interpretation, however, does not comport with the intent of the legislature. As indicated in the statute's sponsoring memorandum, paragraph (k) was enacted "to include as a matter of law, as part of discovery, records relating to the inspection, repair and operation of machines and equipment, with the results to be used in the prosecution's case" (Sponsor's Memorandum, White Br. Exh. E). In accordance with this legislative intent, the People are directed to provide the defendant with the inspection, calibration and repair reports for the Intoxilyzer 5000EN used to test the defendant's blood alcohol content which immediately preceded and which immediately succeeded the defendant's test. The People are also directed to provide the maintenance log for the Intoxilyzer used, if such a log exists, for a period of one month prior to and one month subsequent to the administration of the defendant's test; and the simulator solution certificate of analysis for the simulator solution lot used in the defendant's breath test.
The defendant also seeks "headspace gas chromatography data records...in relation to the simulator solution(s) employed in the calibration of the machine and testing of the Defendant." See defendant's Supplemental Motion at 4. In a footnote to this request, the defendant states: "The simulator solutions(s) used in the calibration of the machine used...are tested to determine that it contains the appropriate concentration of ethyl alcohol. During that testing printouts are produced and stored." Id. In People v. White, 45 Misc 3d at 409, a similar request was denied on the ground that the defendant failed to adequately explain why such reports added "anything above and beyond the simulator solution report the People routinely provided." Here, as in White, the defendant fails to demonstrate that such reports would be of any probative value. Accordingly, the defendant's request for headspace gas chromatography data records is denied.
Accordingly, to the extent not previously disclosed, the People are directed to provide the defendant with: (1) every "written report or document, or portion thereof" concerning the specific chemical breath test administered to the defendant; (2) the certification certificate of the police officer who administered the breath test to the defendant; (3) the inspection, calibration and repair reports which immediately preceded and immediately succeeded the Intoxilyzer 5000EN used to test the defendant; (4) the maintenance log for the Intoxilyzer 5000EN used, if such a log exists, for a period of one month prior to and one month subsequent to the administration of the defendant's test; and (5) the simulator solution certificate of analysis for the simulator solution
lot used in testing the defendant's blood alcohol level.
This constitutes the decision and order of the court.
DATED: February 4, 2015
Bronx, New YorkHon. Steven J. Hornstein
cc: Brendan M. Ahern, Esq.
666 Old Country Road, Suite 700
Garden City, NY 11530
Ray Serina, Esq.
Assistant District Attorney
Bronx District Attorney's Office
198 East 161st Street
Bronx, New York 10451